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CRIMINAL CODE OFFENCES - Attempts, conspiracies and accessories - Counselling

Tuesday, August 04, 2020 @ 9:14 AM  

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Appeal by the Crown from the respondent’s acquittal on a charge of armed robbery. The respondent was allegedly one of two robbers robbing a restaurant. The respondent denied being involved in the robbery and claimed he was at a friend’s house. The friend denied this at trial. The respondent admitted, however, that he instructed several men at the friend’s house on how to commit the robbery. He identified the two robbers depicted on the security video as two of the men, T and “littleman,” who had been present at the friend’s house. The Crown’s primary theory was that the respondent was the masked robber in the restaurant and that he was guilty as a principal offender. The Crown also argued, in the alternative, that the respondent was guilty as a party to the offence by virtue of s. 21(1)(c) or s. 22(1) of the Criminal Code because, by providing instruction to the men he named in his warned statement on how to commit a robbery in order to solve their financial problems, he encouraged or counselled them to commit that offence. The trial judge found the evidence did not prove that the respondent was one of the robbers and that there was insufficient evidence implicating or proving that T and “littleman” were the persons involved in committing this robbery, thus precluding the respondent from being convicted as an accessory.

HELD: Appeal allowed. New trial ordered. The trial judge made a legal error by instructing himself that, as a prerequisite to establishing the respondent’s culpability on either the basis of abetting the commission of the robbery, under s. 21(1)(c) or based on counselling the commission of that offence under s. 22(1) the Crown was required to prove that T and “littleman” were the principal offenders. There was no need for the Crown to prove that the person or persons counselled by the respondent participated in the offence as a principal offender to establish his guilt on the charge of robbery based on s. 22(1). If the respondent’s conduct met the actus reus and mens rea requirements for counselling, then he, himself, would be guilty of robbery by virtue of s. 22(1) as long as the persons counselled participated in the offence in one of the ways listed in ss. 21(1) or 21(2). The trial judge’s legal error had a material bearing on the respondent’s acquittal.

R. v. Cowan, [2020] S.J. No. 251, Saskatchewan Court of Appeal, G.R. Jackson, R.K. Ottenbreit and J.D. Kalmakoff JJ.A., June 26, 2020. Digest No. TLD-August32020001